Tosovic v Sigma Air Conditioning Pty Ltd
[2022] NSWPIC 92
•3 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Tosovic v Sigma Air Conditioning Pty Ltd [2022] NSWPIC 92 |
| APPLICANT: | Dusan Tosovic |
| RESPONDENT: | Sigma Air Conditioning Pty Ltd |
| MEMBER: | 3 March 2022 |
| DATE OF DECISION: | Paul Sweeney |
| CATCHWORDS: | WORKERS COMPENSATION - Design engineer injured while ice skating with children while on assignment for his employer in Vienna; ComCare v PVYW considered and applied; finding that the evidence established that the activity was induced or encouraged by employer; Held- award for the worker for total and partial incapacity during first and second entitlement periods and for permanent impairment compensation. |
| DETERMINATIONS MADE: | 1. The applicant suffered injury in the course of his employment namely a contrecoup injury to his frontal lobe when he fell while ice skating on 25 January 2017. 2. The applicant’s employment was a substantial contributing factor to the injury. 3. As result of the injury the applicant was totally incapacitated until 16 July 2017 and thereafter was partially incapacitated or had a current earning capacity to 24 July 2019. 4. At all material times the applicant’s pre-injury average weekly earnings was $2,389.11 per week. 5. From 8 January 2018, the applicant was able to earn the sum of $1,538.46 per week in some suitable employment. 6. Respondent to pay the applicant compensation pursuant to s 36 at the rate of $2,269.65 per week from 25 January 2017 to 26 April 2017, and pursuant to s 37 at the rate of $1,911.29 per week from 27 April 2017 to 16 July 2017 and at the rate of $372.79 per week from 7. Respondent to pay the applicant’s medical and hospital expenses in accordance with s 60. 8. Respondent to pay the applicant the sum of $49,590 pursuant to s 66 for 20% WPI in respect of injury on 25 January 2017. 9. Respondent to have credits for payments of compensation made to the applicant. 10. Liberty to apply in respect of the above calculations. |
STATEMENT OF REASONS
BACKGROUND
Sigma Air Conditioning Pty Ltd (the respondent) design air conditioning units for train carriages manufactured in Australia and internationally. Dusan Tosovic (the applicant) was employed by the company as a project design manager.
In addition to the design of air conditioning units, the applicant’s role involved overseeing the manufacturing of the units, their installation in train carriages, and their commissioning following a site acceptance test (SAT). In order to carry out these functions it was necessary for him to travel to foreign cities.
On 21 January 2017, the applicant arrived in Vienna, Austria, to oversee the testing of air conditioning units installed in rail carriages manufactured by the respondent’s client Bombardier in Canada. The testing of the carriage and the air conditioning unit was to be carried out at a specialised climate rail testing facility in Vienna known as Rail Tec Arsenal (RTA).
As the transportation of the Bombardier carriage from Canada to Vienna was delayed, the applicant arranged for his wife and children to join him in Vienna. He also contacted a former colleague, Etienne Terreng, who regularly supervised the testing of rail carriages and air conditioning units at RTA.
On 25 January 2017, the applicant met Mr Terreng at Hoffburg, Vienna where they had lunch and discussed how the applicant might obtain early access to the RTA. After lunch the applicant and Mr Terreng were joined by their wives and the applicant’s children at a portable coffee shop at, or near, Rathaus. There was a“pop-up” outdoor ice-skating rink adjoining the premises. After coffee, the applicant and his children went skating on the ice rink.
While attempting to assist his son, the applicant fell backwards and struck his head. He suffered a serious brain injury which necessitated his admission to hospital for several weeks. He was medically evacuated from Vienna to Sydney on 14 March 2017, when he was admitted to the Royal North Shore Hospital (RNSH).
The applicant alleges that his injury in Vienna on 25 January 2017 arose out of or in the course of his employment. The respondent disputes that there is any relevant causal connection between the injury and the applicant’s employment. It also disputes that the applicant’s employment was a substantial contributing factor to the injury as required by s 9A of the Workers Compensation Act 1987 (the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
By these proceedings, the applicant claims weekly compensation for a closed period to 19 April 2021, an order in respect of his hospital and medical expenses pursuant to s 60, and an award for permanent impairment compensation in respect of his brain injury pursuant to s 66 of the 1987 Act.
The respondent disputes that the applicant’s injury is compensable. It also disputes that the applicant was incapacitated for work as a result of the injury. It accepts, however, that if his injuries are compensable, his permanent impairment compensation is as claimed in the Application to Resolve a Dispute (the Application), namely 20% whole person impairment.
10.When the matter came on for conciliation and arbitration on 17 January 2022, Mr Malouf of counsel appeared for the applicant and Mr Grimes of counsel appeared for the respondent.
I was informed by counsel that the parties were unable to reach agreement as to whether the subject injury arose out of or in the course of employment. I am satisfied that the parties, who were represented by experienced counsel, had ample opportunity to resolve the claim during the telephone conference in the matter and during the conciliation conference. The conciliation and arbitration hearing were held audio-visually.11.At the conclusion of the arbitration hearing, I directed that counsel provide written submissions addressing the reasoning in three recent cases which addressed the decision of the High Court in Comcare v PVYW [2013] HCA 41. Those cases were Li v Brighton Australia Pty Ltd [2020] NSWWCCPD 44 (Li), Westrupp v BIS Industries Ltd [2015] FCAFC 173 (Westrupp) and Dring v Telstra Corporation Ltd [2021] FCAFC 50 (Dring). These cases had not been referred to by counsel in argument. The submissions in respect of these cases have now been received by the Commission.
EVIDENCE
12.The evidence before the Commission is as follows:
(a) the Application and the documents attached;
(b) the Reply and the documents attached, and
(c) Applications to admit late documents (AALD) dated 6 December 2021 and 17 January 2022 and the documents attached to each.
13.While there was an initial objection to a statement of Ramona Schembri attached to the AALD lodged on 17 January 2022, it was withdrawn before the commencement of submissions. Otherwise, there was no objection to any of the material referred to above. There was no application to adduce additional written or oral evidence.
SUBMISSIONS
14.The submissions of counsel are recorded or in writing and I do not propose to reiterate each of the arguments of counsel in these short reasons. Both counsel accepted that the principles enunciated by the High Court in Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473 (3 June 1992) (Hatzimanolis) and in ComcarevPVYW (2013) 250 CLR 246 (PVYW), should be applied to the circumstances of the case. There was no agreement, however, on the outcome that was produced by the application of those principles to the facts.
15.Mr Grimes submitted that the respondent had not induced or encouraged the applicant to meet with Mr Terreng on 25 January 2017. It was unclear how Mr Terreng could assist the applicant to obtain access to the RTA to carry out tests on the Bombardier carriage. A direct approach to Bombardier or RTA was the most likely means of achieving this access.
16.If, however, the meeting with Mr Terreng was found to be in the course of the applicant’s employment, then the same could not be said for the applicant ice-skating with his children at the Rathaus pop-up ice rink. That was undertaken after Mr Terreng had left the restaurant. There was no evidence that this activity was impliedly encouraged by the respondent or that the applicant had been induced by the respondent to skate.
17.Mr Grimes also challenged the causal nexus between the applicant’s injury and his incapacity for work after he resigned from the employment of the respondent on 7 January 2008. He pointed to the obvious fact that the applicant had returned to his pre-injury employment and worked for a number of months before resignation. He also referred to an entry in the applicant’s clinical record where he complained to a neurologist of a six month history of cognitive disturbances at work and at home only days before the subject injury. This was a likely cause of the applicant’s incapacity for work.
18.Finally, Mr Grimes submitted that the contemporaneous evidence did not support a connection between the injury and the applicant’s back condition.
19.The applicant submitted that it was clear that the respondent induced or encouraged the applicant to make contact with Mr Terreng. It relied particularly on Ms Schembri’s email to take whatever steps were necessary to commission the air-conditioning units. It also submitted that it was the unchallenged evidence of Mr Terreng that he met with the applicant on 25 January 2017 to discuss the issue of his early access to the RTA facility before the commencement of other tests to do what was necessary to achieve SAT.
20.By both his oral and written submissions Mr Malouf argued that the applicant went
ice-skating “to appease Mr Terreng”. He also referred to Mr Pitcher’s evidence that it was reasonable for an employee to undertake “low risk” recreational activities while overseas which “contribute to normal fitness”. He submitted that this evidence was sufficient to enable a finding that the applicant was induced or encouraged to go ice-skating by the respondent.21.In respect to arguments relating to capacity for work following his resignation from the respondent, Mr Malouf referred to the evidence of Miss Anderson, a neuro- psychologist dated 18 March 2020, who accepted that the applicant was unable to sustain employment at his pre-injury level. Mr Malouf noted that while Miss Anderson had stated that the applicant was unlikely to “be commercially employed again”, he had in fact found reasonably well paid employment. He submitted, however, that during the intervals between his post-injury employments the applicant was incapacitated for work.
22.It will be necessary to return to the submissions of counsel in resolving the issues in dispute in this matter. It is first necessary, however, to briefly set out the evidence of the applicant and his wife, Mr Terreng and the respondent’s witnesses. What follows is not a comprehensive survey of all of the evidence of each witness. Rather, I set out the salient points so that the way in which the Commission has resolved the dispute can be understood.
The applicant
23.The applicant’s evidence is contained in two signed statements. By his initial statement dated 21 April 2017, the applicant sets out his work history as a mechanical engineer specialising in air conditioning. He recounts that he works in a team of four overseen by Joshua Pitcher. He is responsible for all technical aspects of the design of air conditioning units for trains, although the parts of the air conditioning units are manufactured in China.
24.The applicant recounts that he travelled to Canada on 15 January 2017 to carry out the initial tests on air conditioning units within the train carriages manufactured by Bombardier. He then flew to Vienna as it was necessary to carry out “a different set of tests on the same project ‘at that location’”. He states that there were delays in the arrival of the train car from Canada and he had to wait in Vienna for its arrival.
25.On arrival in Vienna on 21 January 2017, the applicant met a colleague, Tony Carnovale. They stayed at the same hotel and ate their meals together. Given the delay in the arrival of the carriage, the applicant arranged for his family to join him in Vienna. On 23 January 2017, his wife and children arrived in Vienna. He continues:
“It was not until 25 January 2017 in the evening that we decided to take the children ice-skating. A former colleague was with us but not skating, and he suggested it.”
26.The applicant describes the incident which took place in an outdoor area adjacent to a restaurant called Wiener Eistranum. He says this:
“I paid for the skating tickets for myself and my children out of my personal funds.
I would not be submitting my ice-skating tickets as a work-related expense.We had intended to have a casual meal afterwards but had no specific plans. I had not consumed any alcohol prior to going skating.
In respect of reimbursement of my meal expenses etc for Tatjana and the children, all those costs were paid for by her, there was never any suggestion of reimbursement from my employment for those costs. I would have skated for no more than 30 minutes before my accident. Tatjana decided not to skate. Tony was not present.”
27.Following his fall he was advised by the operator of the ice rink that there was an ambulance on site. The applicant informed the ambulance officer that he had little recollection of what happened during his fall. He was promptly taken to hospital where he was diagnosed with intercranial bleeding which required operative intervention.
28.The applicant concludes his initial statement thus:
“I wish to state that on the day of my accident, Wednesday 25 January 2017 and prior to it, I had still been carrying out my usual work duties associated with the project –
I had just received a test plan I had to review and I started doing this in the morning. So I was still working at my job and not on holiday as such with my family.The main purpose of that evening was to meet up with my former work colleague Etienne who uses the same testing facility and works close by it. We discussed what was going on there because I was concerned about the ongoing delays. Etienne and
I had a late lunch together, eating with my wife and children initially who then went to a museum while Etienne and I talked about work. He then suggested we go ice-skating and stayed for a while and before I had my fall, but left before me [sic] fall.”
29.By his supplementary statement, which is dated 1 October 2021, the applicant elaborates on the nature of his work in Vienna. In respect of the need to gain access to the Bombardier carriage as soon as it arrived at the RTA facility, he says this:
“Therefore, having experienced complications in the initial testing in Canada, in these circumstances, I needed to access to the rail car which was to be tested at the RTA testing facility in Vienna before the Vehicle Type Test commenced. If I did not obtain early access to the RTA testing facility, there was a real probability that the air conditioning units would not work properly and cause delays costing potentially tens of thousands of euro. Noting the STA was not completed in Canada also due to issues with the air conditioning unit, I had to perform the necessary software work and commissioning on the rail car before the Vehicle Type Test commenced.”
30.The applicant annexes to his statement his email conversations with the project manager, Ms Schembri relating to the mode of carrying out the testing and final adjustment of the air-conditioning units in Vienna. He states that:
“As Ramona (Ms Schembri) had encouraged me, I tried to get in contact with one of my contacts in order to get access to the facility, as soon as I arrived in Vienna, I tried to get in touch with my former work colleague, Etienne Terreng.”
31.The applicant states that Mr Terreng was a member of the commissioning team at Siemens, a large engineering firm, and frequently worked at the RTA testing facility.
32.The applicant recounts that during a working lunch, Mr Terreng “suggested we change our location, to continue our discussion”. He says that Mr Terreng “took me to a café with an ice rink”. Shortly after their arrival at the café, Mr Terreng’s wife and the applicant’s family also arrived. Then, Mr Terreng suggested that the applicant and his family ice-skate. He says that:
“I was in no position to decline this offer as Etienne had provided significant assistance in minimizing any issues which may arise due to Ramona’s and Bombardier mismanagement, by agreeing to provide me with early access to the RTA testing facility. I believe that Ramona would have encouraged me to keep Etienne and his wife entertained, to offer our thanks and to ensure we did not offend him. I therefore accepted the offer. I also was aware of the company travel policy, which did not prohibit low risk recreational activities.”
33.While ice skating, the applicant went to the assistance of his son, lost balance, and fell.
Etienne Terreng
34.By his initial statement, dated 26 September 2017, Mr Terreng recounts his long association with the applicant, which commenced before they worked for Siemens together between 2005 and 2009. He states that he had remained at Siemens as a commissioning engineer since that time. He continues:
“I am responsible for rail supplier equipment testing. One of the major items, always purchased from outside suppliers, is air-conditioning units. I have been involved in numerous tests for these units, produced by a number of different suppliers.”
35.Mr Terreng says that he responded to a phone call from the applicant on 23 January 2017. The applicant told him that he “wanted to meet up to discuss something work-related he needed my help with”.
36.Mr Terreng states that he met the applicant at Hoffberg for lunch on 25 January 2017. He states:
“We discussed the project he was working on, the testing undertaken in Canada, and what was needed to be done in Vienna by way of further testing.”
37.After lunch, Mr Terreng suggested that they continue their discussion at a coffee shop, at Rathaus “to finish up discussing what I could do to assist Dusan”. He continues:
“Connected to this coffee shop was a pop-up outdoor ice-skating rink. I thought this would impress Dusan. Dusan’s family was to catch up with us when they were done with visiting a museum.”
38.Mr Terreng says that the pair continued talking about the applicant’s project and the testing on arrival at the Rathaus. He states that the applicant asked him to “facilitate his access to the testing facility as soon as the rail car arrived” to enable him to perform software work and commissioning on the HBAC units before testing started. Mr Terreng told the applicant that if he was told when the rail car was arriving he could “make the necessary arrangements”.
39.Mr Terreng recounts that when his wife and Dusan’s family arrived he proposed that they
ice-skate. While the applicant and his children were ice-skating Mr Terreng and his wife left the café. He says:“I can confirm that the purpose of meeting Dusan on 25/1/2017 was to discuss work, testing of the rail car, and my involvement in facilitating his access to the testing facility. He ice-skated at my suggestion.”
40.By a supplementary statement dated 19 August 2019 Mr Terreng says that he did not tell the applicant that he was leaving the Rathaus as he did not want to disrupt him and his children who were ice-skating.
Tatjana Tosovic
41.Ms Tosovic describes the circumstances in which they flew to Austria to meet the applicant in Vienna in January 2017. She states:
“On the evening of Wednesday 25 January 2017 Dusan took the children ice-skating. Dusan had not gone ice-skating prior to that evening nor sustained any injury or fall prior that I am aware of. We went to an outdoor ice-skating rink with a former work colleague of Dusan’s, Etienne Terreng at around 5.30pm to 6pm. I did not skate and Etienne left before Dusan’s incident.”
42.The balance of the statement describes the applicant’s hospitalisation in Vienna and the family’s return to Australia.
Joshua Pitcher
43.Mr Pitcher is the respondent’s engineering manager and the applicant’s “Department Manager”. He states that the applicant was required to regularly travel overseas for customer meetings, design reviews, and testing activities. The “focus of our work is overseas bespoke design”. He continues:
“Sigma has a travel policy for employees which I am providing a copy of. It does not make any restrictions on the recreational activities employees can and cannot do whilst on overseas business. We also have a Travel Overseas Procedure for staff which I can also provide a copy of. It is our WHS Policy for overseas travel. This does not refer to activities outside work hours other than to try and avoid ‘particularly risky situations’. This is stated in the context of personal security.”
44.Mr Pitcher says that he thought that ice-skating was a low risk activity and “as such I would expect it to be covered by our travel insurance”. He continues:
“It is reasonable for our employees to undertake low risk recreational activities during their business travel. These activities can contribute to normal fitness.”
45.Mr Pitcher also says that it is “acceptable” for families to join employees while they are in foreign cities so long as “family travel is paid for privately”.
46.Mr Pitcher confirms the presence of the special rail testing facility in Vienna and that the testing of the air-conditioning equipment would take two weeks. While he waited for the arrival of the train:
“Dusan was still required to perform daily duties on this and other projects, under his responsibility. He is able to work on these other projects remotely, from overseas.”
47.By a supplementary statement of 5 November 2020, Mr Pitcher states that the applicant left Sigma on 8 December 2017 “of his own free will”. He says that the applicant stated at the time that his “reasons for leaving were unrelated to Sigma”.
48.Mr Pitcher also addresses the RTA in Vienna which Bombardier, the manufacturer of the carriages, was using to test its train. He continues:
“We had no commercial relationship with the facility, and we were there at the request and commercial obligation to support our customer during the test.
I would disagree that the test facility is a client of Sigma’s. They had a commercial relationship with Bombardier, but not with us.”
49.Mr Pitcher also states that he does not know Etienne Terreng and did not request the applicant make contact with him. He states if the meeting was a business meeting, he would expect to see an email in the email vault relating to it.
Alaleh Schembri
50.Ms Schembri is a senior project manager for the respondent. She confirms that the applicant was sent to Vienna to support Bombardier during their testing of the carriage at RTA. She states:
“Dusan was there to support Bombardier, and had he needed assistance, he could have reached out to them, and would not have needed to try and get access any other way. Therefore the comments that I suggested he try and get access via old contacts make no sense to me.
Essentially, Dusan went to Vienna to support Bombardier for testing.”
51.Ms Schembri also states:
“I understand that he sustained an injury, while ice-skating, and it is my understanding that he was there for work, so whatever occurred, should have been in relation to his employment, because if it was not for his work, he would not have been there.”
52.There is a further statement of Ms Schembri dated 3 December 2021. In this statement, she reiterates that she did not know Etienne Terreng. She confirms that when the applicant arrived in Vienna, the Bombardier carriage was “stuck in customs and could not be transported to the test lab until it was cleared”. She states that this was “a Bombardier responsibility and not Sigma”.
53.Ms Schembri doubts the applicant’s claim that if he could not access the rail car at RTA before vehicle type tests commenced it could result in the loss of “tens of thousands of euro”. She states that adjustments to the air-conditioners would cost “2000 to 3000 euro at most”. In respect of the SAT, she states:
“As a senior engineer, he was expected to do what was necessary, within the bounds of our company policies to complete the commissioning.”
DISCUSSION AND FINDINGS
54.In several reported cases the evidence established that workers who were assigned by their employers to work in foreign cities were on call 24 hours a day. In those cases, the employment was continuous and injury at any time of day or night was an injury in the course of the employment.
55.In Rolls v ATL Limited [1980] WCR 45 the worker died as a result of injuries inflicted by robbers who broke into his apartment Hong Kong in the early evening. McGrath J, in the Workers Compensation Commission, held that his death arose out of and in the course of his employment. The Court of Appeal upheld his Honour’s finding that the death occurred in the course of the worker’s employment. It was, therefore, unnecessary to consider whether it also arose out of the employment.
56.The celebrated decision of the High Court in Favelle Mort Ltd v Murray (1976) 133 CLR 580 where an engineer died as a result of contracting meningoencephalitis during his stay in the United States is another example. The Commission accepted that this was one continuous period of employment. Irrespective of what he was doing when the virus entered his body, the worker was in the course of his employment.
57.There is no such evidence in this case. Nonetheless, it is certainly the case that the course of the applicant’s employment in Vienna extended well beyond periods when he was actually working. Plainly, he was in the course of his employment, when sleeping, eating and travelling to places at which he was required to work. Arguably, he was also in the course of his employment while engaged in activities that are necessary for the maintenance of his physical and mental health such as walking, jogging, or attending a gym. But it is evident that there may be intervals or breaks within this overall period of employment during which a worker engages in an activity which is unconnected with his employment.
58.In PVYW at [38]-[39], the majority said this:
“The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer’s inducement or encouragement to be present at a place is not relevant in such a case.”
59.While the minute dissection of a worker’s activities while in the course of his employment is unhelpful, it is undoubtedly the case that the applicant suffered injury during an activity in an interlude between periods of employment. He was skating with his children in the early evening between 5 and 6 pm, when he fell. It is, therefore, necessary, as counsel submitted, to consider whether the respondent expressly or impliedly encouraged or induced the applicant to engage in that activity.
60.Contrary to the respondent’s submission, there can be little doubt that the applicant’s meeting and late lunch with Mr Terreng on 25 January 2017 was closely connected to his employment. Even if it were not, it is difficult to understand why the applicant was not in the course of his employment while eating his lunch in a foreign city. That, however, is a distraction. The email chain attached to the applicant’s evidence is consistent with the respondent encouraging him to do all that was necessary to achieve SAT at the RTA before the vehicle type tests on the Bombardier carriage were undertaken. On 20 January 2017,
Ms Schembri emailed the applicant:“The issue with APU might not be our HVAC unit wiring problem but their AUP's design issues. I think their APU software needs to be updated to add a current limit, so that the APU shuts itself down in case of over current before it blows up ...
I'm sure you can get access to finalize SAT, some people still remember you.”
61.Undoubtedly, Mr Terreng was one of the people who remembered the applicant from his days in Vienna. By reason of his position at Siemens, he was thoroughly familiar with the operation of the RTA. His evidence is that the applicant wished to meet him to discuss gaining access to the RTA to carry out the necessary testing and SAT. His evidence is that these matters were the subject of discussion at lunch. In that respect, he corroborates the applicant’s evidence. It is unnecessary for the applicant to establish that employment was the only purpose of the meeting: Hook v Rolfe(1986)7NSWLR 40.
62.The respondent suggested that the meeting was an inappropriate or circuitous method of gaining access to the RTA. It suggested that the applicant’s evidence was fanciful. He should have relied on Bombardier to provide access at the appropriate time. There may have been numerous ways of ascertaining the workings of the RTA and ultimately gaining access to it at an appropriate time. However, seeking the assistance of an engineer who frequently worked there seems entirely appropriate.
63.The respondent also refers to the fact that no one else at its Sydney operation knew of
Mr Terreng. I accept that is the case, but I fail to see how it is relevant in determining the factual circumstances of the case. It was always entirely possible, as I understand the evidence, that the applicant would have consulted with people who were not known at the Sydney office in gaining access to the RTA. The fact that there was no email from the applicant regarding his meeting is also unsurprising. The applicant was in no position to send an email in the days following the injury and is difficult to understand any good reason why he should email Ms Schembri to tell her that he was meeting with someone who might assist in gaining access to the RTA site at the appropriate time.64.Similarly, I find on the probabilities, that the taking of coffee at the outdoor café adjacent to the ice rink was in the course of the applicant’s employment. I see no reason to reject
Mr Terreng’s evidence that he invited the applicant to go with him to the coffee shop adjacent to the ice rink “to continue our discussion” about access to the RTA. This evidence is uncontradicted and is not inherently implausible. Once again, it is unnecessary for the applicant to demonstrate that work factor was the only reason for going to the coffee shop. Mr Terreng states that he thought that this venue would impress the applicant and, presumably, his family who were to meet them there.65.The applicant’s submission acknowledges that it cannot be assumed that this period of employment continued once the applicant commenced ice skating. The evidence of an employment connection to this activity is also more tenuous. The applicant says that he felt that he was in no position to refuse Mr Terreng’s suggestion that he and his family skate. To reiterate, his evidence on this aspect of the case is:
“I believe that Ramona would have encouraged me to keep Etienne and his wife entertained, to offer our thanks and to ensure we did not offend him. I therefore accepted the offer.”
66.The import of this evidence is that the applicant believed that to reject the invitation to ice skate may offend Mr Terreng and possibly put in peril his cooperation in gaining access to the RTA. I was initially sceptical of this evidence. However, on reflection, it seems more plausible. If that was the case, the activity of ice-skating may be simply an extension of the applicant’s efforts to obtain the assistance of Mr Terreng in accessing the RTA. As discussed above, this was a task that the respondent implicitly encouraged the applicant to perform namely gaining access to the RTA at an early time. It follows that the respondent had impliedly encouraged or induced the applicant to perform the activity.
67.The other way that the applicant put his case on encouragement and inducement arose from the evidence of Mr Pitcher. He refers to a travel policy. It is not entirely clear whether this is a policy relating to the behaviour of employees when they are abroad or a policy of insurance. The context suggests the former. The policy was apparently produced to the respondent’s investigator but I was not referred to it during argument. To reiterate that evidence,
Mr Pitcher says:“It is reasonable for our employees to undertake low risk recreational activities during their business travel. These activities can contribute to normal fitness.”
68.The applicant, of course, says that he was aware of the policy and, possibly with hindsight, thought that it extended to ice-skating. Performing an activity that an employer has suggested to is reasonable to undertake while abroad is probably also sufficient evidence to found a conclusion that the employer impliedly encouraged that activity.
69.While the facts in this case do not speak as clearly to inducement or encouragement as to the facts in Hatzimanolis, they are far removed from the facts in Qantas Airways Limited v Watson (No2) [2010] NSW WCC PD 38 (14 April 2010) or Dring v Telstra CorporationLimited [2020] FCA 699 and, on appeal, [2021] FCAFC (9 April 2021). In the latter case, the applicant slipped in a hotel foyer at 2.30 am after “extensive socialising” on a day when she was required to work to attend a business meeting in the morning.
70.I appreciate that there is a distinction between not prohibiting an activity and impliedly inducing it. However, in the circumstances of this case, I believe that the evidence establishes that the instruction to the applicant to gain access to the RTA facility impliedly induced him to meet with Mr Terreng and to comply with his suggestion that he and his children ice skate in the period leading up to his injury.
Substantial contributing factor
71.While the respondent denied that the applicant’s employment was a substantial contributing factor to the injury, it was not separately addressed at the arbitration hearing. That may be because an acceptance of the applicant’s case on injury; that he had been impliedly encouraged or induced to carry out the activity of ice-skating by his employer, may also be cogent evidence that the employment was a substantial contributing factor to the injury.
72.The decision of the NSW Court of Appeal in Badawi v Nexon Asia PacificPty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 (8 October 2009) (Badawi) addressed the previously vexed question of the proper construction of s 9A. Plainly, it follows from the reasons of the judges that the section requires a determination that there is a causal nexus between the injury and the employment that is additional to and, more stringent than the test of causation required for a finding that the injury arose out of the employment. The contributing factor must be “real” and “of substance” before such a finding can be made. Thirdly, it is essential in determining the issue to address the matters set out in s 9A (2). Fourthly, the section directs attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of the injury.
73.Ultimately, the test in s 9A (2) requires an evaluation of the work and non-work related factors contributing to an injury for the purpose of where the determining the work factors are real and of a substance. While this can be done through the analysis of the factors in s 9A(2), it is not limited to those factors.
74.In this case, the applicant’s employment led him to meet Mr Terreng for a late lunch on the afternoon of 25 January 2017 and remain with him throughout the afternoon during which they periodically discussed access to the RTA. In deference to Mr Terreng, the applicant went ice-skating. I have found that he was in the course of his employment when skating. In those circumstances, an analysis of the factors in s 9A(2) in the context of the entirety of the evidence leads inexorably to the conclusion that employment was a substantial contributing factor to the injury.
Injury and incapacity
75.Undoubtedly, the applicant suffered a serious head injury as a result of the fall in Vienna.
Dr Davies states that the injury resulted in damage to the “frontal regions” of the brain. It seems likely that the applicant has some persisting symptoms as a consequence of the injury. Certainly, the applicant experienced a seizure following his return to Sydney and another in 2018, which are undoubtedly related to his injury. It was the opinion of his treating neurologist that while his seizures have abated, he would remain at risk, at least for the foreseeable future, of further seizure because of frontal load gliosis.76.Conversely, the applicant has not established that he suffered a low back injury as a result of the incident. While he states that he noticed some back pain after his discharge from hospital following his head injury, there is no note of the back condition in the quite extensive clinical record before 14 July 2017 where an entry states that the applicant experienced back pain “in recent weeks”.
77.It is also evident, as Mr Grimes submitted, that there is a complaint of back pain in the clinical record prior to the injury. Admittedly, it is a solitary complaint and by itself is probably not particularly potent evidence. There is, however, no explanation of the long delay between the injury and the onset of back pain in the applicant’s evidence. Dr Davies states that it is “possible” that the applicant suffered an aggravation of degenerative changes in the incident which only became apparent when he became more active. However, that opinion does not sit comfortably with the evidence of a nearly six month delay in reporting back symptoms.
78.There is an no doubt that the applicant was incapacitated for work by reason of his injury between 25 January 2017 and 17 July 2017. From 25 September 2017, he returned to
pre-injury duties but left the respondent on 8 December 2017.79.There is some controversy, as to the circumstances of his departure. Mr Pitcher states that the applicant left of his own free will for reasons that were “unrelated to Sigma”. The applicant, however, states that there was a significant change in in his mood and functioning following the injury. In his supplementary statement the applicant describes feeling “low and depressed” and that his communication skills were impaired. He says that:
“Following the injury, I became very unmotivated and discouraged. I was experiencing persistent fatigue.”
80.When Dr Davies saw the applicant for the first time on 13 November 2017, he stated that he could not tell whether he could sustain a return to all of the duties that he performed prior to his injury. He was confident, however, that the applicant was fit for work. He noted that head injuries take a long time to recover.
81.When he saw the applicant again on 25 February 2019, Dr Davies recorded that the applicant complained of some memory problems. His back and buttock pain had settled. He recommended neuropsychological testing. He expressed the opinion that it was possible that the applicant may have:
“some difficulties with activities requiring multi-tasking and high level executive function”.
He stated, however, that there was no reason why the applicant should not be able to return to full-time employment in a similar role to he had previously been performing. However he stated that he “may not be able to get back to the same level of performance.”
82.I have previously referred to the opinion of Ms Anderson, the neuropsychologist who expressed the opinion that the applicant was commercially unemployable. That opinion, however, is entirely at odds with the fact that he returned to work after the injury and that he has worked continuously for many months in the period leading up to the conciliation and arbitration in work that provided similar remuneration to that which he obtained in his
pre-injury employment. I accept the evidence of Dr Davies. His opinion is based on a sound understanding of the evidence in the matter. It is logical and compelling. I prefer to the other evidence in the case that addresses the issue of the incapacity including the reports of
Ms Anderson and Dr Coroneous.83.There is one aspect of the applicant’s pre-injury medical history which Dr Davies did not have access to at his consultations. On 10 January 2017, Dr Ahmad of the Macquarie Neurology took a history that the applicant had cognitive disturbance in “multiple domains” including memory. He expressed the opinion that these symptoms were likely to be related to concentration and mood issues rather than underlying cognitive disorder. He recommended some blood tests and an MRI of the brain. Obviously, this was not undertaken as the applicant’s head injury, only a few weeks later, became the focus of his medical treatment.
84.The respondent argued that the complaints made to Dr Ahmad explained the applicant’s post injury work history including his departure from the respondent. At least, Dr Davies did not have an accurate history and his opinion was, therefore, suspect. It is a plausible that the complaints that the applicant made to Dr Ahmad are relevant to his mood and functioning over the period of the claim.
85.I have no doubt, however, that the effects of an undoubtedly serious head injury and its sequela have also played a significant part. While the complaints to Dr Ahmad may form the basis of a “pre-existing condition” for the purposes of a permanent impairment claim, they do not negate the opinion of Dr Davies that the applicant had some ongoing impairment that led to a discrete incapacity as a result of the injury. Clearly, the effects of the injury have not ceased. It is, of course, for the respondent to disentangle the causes of the applicant’s injury and incapacity in cases such as this.
86.I have concluded on the entirety of the evidence that at the time of his departure from the respondent the applicant was not fit to consistently perform full range of duties which he had performed as a consulting engineer in the years prior to his injury. But it is equally clear that the applicant had a current earning capacity throughout the period. While he was not capable of performing the full duties of a consulting engineer in a busy design role, he remained capable of performing many engineering and clerical roles. That finding reflects the opinion of Dr Davies.
87.It is probable that the applicant’s capacity to earn has gradually increased over the 130 week period that constitute the first and second entitlement period. However, during this period
I find that the applicant was able to earn in some suitable employment as that phrase is defined ins 32A of the 1987 Act in engineering, clerical or managerial work the sum of $80,000 per annum. This translates into a weekly figure of $1,538.46 per week.88.At the arbitration hearing, Mr Malouf submitted that I should make an award during the third entitlement period in accordance with s 38 of 1987 Act. But it is clear that, in the circumstances of this case, the preconditions for an award in the third entitlement period are not met. Thus, even if I had jurisdiction, which I doubt, I could not make an award in this period.
89.I propose to make the following findings and orders:
(a) The applicant suffered injury in the course of his employment namely a contrecoup injury to his frontal lobe when he fell while ice skating on 25 January 2017.
(b) The applicant’s employment was a substantial contributing factor to the injury.
(c) As result of the injury the applicant was totally incapacitated until 16 July 2017 and thereafter was partially incapacitated or had a current earning capacity to 24 July 2019.
(d) At all material times the applicant’s pre-injury average weekly was $2,389.11 per week.
(e) From 8 January 2018, the applicant was able to earn the sum of $1,538.46 per week in some suitable employment.
(f) Respondent to pay the applicant compensation pursuant to s 36 at the rate of $2,269.65 per week from 25 January 2017 to 26 April 2017, and pursuant to s 37 at the rate of $1,911.29 per week from 27 April 2017 to 16 July 2017 and at the rate of $372.79 per week from 8 January 2018 for the remainder of the second entitlement period.
(g) Respondent to pay the applicant’s medical and hospital expenses in accordance with s 60.
(h) Respondent to pay the applicant the sum of $49,590 pursuant to s 66 for permanent impairment compensation in respect of the injury on 25 January 2017.
(i) Respondent to have credits for payments of compensation made to the applicant.
(j) Liberty to apply in respect of the above calculations.
0
8
0